Fourth Circuit Vacancies to be Filled by Obama

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Hot Topics: The Latest Interpretations
of Current Employment Law
for Sterling Education Services’ seminar: “New
Realities in Employment Law; How to Function in
Today’s Business Environment” in Morgantown, WV,
March 25, 2009

Drew M. Capuder
CAPUDER FANTASIA PLLC

CF

Biography: Drew M. Capuder
Licensed in West Virginia and Texas; practicing law 23 years.
Drew Capuder’s practice consists primarily of employment litigation and consulting, and also
includes mediation, commercial litigation, and business consulting.
Author of Drew Capuder’s Employment Law Blog
Teaching: “Legal and Ethical Issues in Media,” at Fairmont State University (2005 to present);
Teaching: Legal Writing at University of Houston Law School (1992-1998).
Frequent presentations in recent years at Continuing Education seminars. Prior topics include:
at will employment; Americans with Disabilities Act; sexual harassment; age discrimination;
retaliation claims; awards of attorneys’ fees in employment litigation; expert witnesses; whistle
blower claims; general overview of West Virginia discrimination and wrongful discharge law;
and recent employment law developments.
Several appearances during the last 5 years on WAJR’s radio program “Ask the Experts”;
appearance for WBOY TV on the WVU-Rodriguez lawsuit.
Several Lectures and Television Appearances for the Texas Society of CPAs from 1992-1998.
JD, University of Houston Law School, 1985
BA, University of Southwest Louisiana (now named University of Louisiana), in Music Theory
and Composition.
Gina Fantasia’s practice focuses on real estate law, insurance law issues, and business advice.

2
Drew M. Capuder, Capuder Fantasia PLLC

Outline from Seminar Agenda
What constitutes sexual harassment?
The treatment of arrest and
conviction records
Potential expansion of retaliation
claims
Employer liability of the acts of non-
employees

3

Other “Hot Topics”
Four vacancies on the Fourth Circuit
Three vacancies on the National Labor
Relations Board
Likely future legislation – sexual
orientation as a protected characteristic
Pending legislation not yet passed –
arbitration
Recently passed legislation – Lilly
Ledbetter Fair Pay Act
ADA Amendments Act of 2008
4

Vacancies on the Fourth Circuit

The US Fourth Circuit Court of Appeals hears appeals from federal district courts in West Virginia, Virginia, Maryland, North Carolina, and South
Carolina.
The Fourth Circuit has 15 authorized judges.
There are 4 vacancies right now on the Fourth Circuit. In other words, 4 of the 15 judge positions are vacant.
All of the nominations from President Bush to fill those positions have expired, so President Obama will have the nominations to fill all 4 positions.
Appointments to these federal judicial positions require the confirmation by the US Senate.
The Democrats control at this time 58 votes in the Senate, through 56 Democrats and 2 Independents (Joe Lieberman, CT; Bernie Sanders VT) who
caucus with the Democrats. If Al Franken eventually is declared the winner in Minnesota, which is expected, the democrats will have 59 votes.
President Obama only needs 51 votes to confirm one of his judicial nominations.
If the Republicans chose to filibuster any of President Obama’s nominations, the Democrats need 60 votes for cloture to cut off the filibuster and force a
vote (cloture requires a three-fifths vote of the voting Senators). If the Democrats will be starting with 59 votes, they will likely frequently be able to
“peel off” a Republican or two to break the filibuster.
Fourth Circuit web site: http://www.ca4.uscourts.gov/
Map of federal circuits: http://www.uscourts.gov/images/CircuitMap.pdf

5

Vacancies on the Fourth Circuit
Of the 15 authorized judicial positions, 4
are vacant and will be filled by President
Obama.
Federal court of appeals nominations
are usually made from lawyers with
significant prior judicial experience. So
the pool of lawyers to be considered
will likely by the current federal district
judges, and, less likely, current state
court judges.
Given Presidential history since 1980,
the substantial majority of federal judges
are appointees of Republican Presidents
(20 years of Republican presidency
versus 8 years of Democrat presidency).
Of the current 11 judges on the Fourth
Circuit, 6 were Republican appointees
and 5 were Democrat appointees
(although Judge Gregory was a “hybrid”
as the footnote in the chart explains).
Assuming President Obama fills all 4
current vacancies, then we will have a
realignment on the Fourth Circuit to:
9 Democrat appointees
6 Republican appointees
Wikipedia page on Fourth Circuit:
http://en.wikipedia.org/wiki/United_States_Cou
rt_of_Appeals_for_the_Fourth_Circuit#Curren
t_composition_of_the_court
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US Supreme Court Justices
Justice Since Appointed By At Age Current Age
Current Supreme Court: 7 appointed by
John G. 9-29-2005 GBW Bush 50 54 Republican presidents, 2 appointed by
Roberts 3 Years 78-22 1-27-55 Democrat presidents.
(chief The conventional view is that there is
justice) currently a 5-4 conservative-liberal split,
John Paul 12-19-1975 Ford 55 88 with Kennedy frequently being the swing
Stevens 33 Years 98-0 4-20-20 vote and less reliably conservative.
Conservative wing: Thomas, Scalia, Alito,
Antonin 9-26-1986 Reagan 50 72
Roberts, Kennedy.
Scalia 22 Years 98-0 3-11-36
Liberal wing: Ginsburg, Breyer, Stevens,
Anthony 2-18-1988 Reagan 52 72
Souter.
Kennedy 21 Years 97-0 7-23-36
Average age is now 68.
David 10-9-1990 GHW Bush 51 69
Souter 18 Years 90-9 9-17-39 Stevens is 88; Ginsburg recently had
surgery for pancreatic cancer.
Clarence 10-23-1991 GHW Bush 43 60
Thomas 17 Years 52-48 6-23-48 Official Site:
http://www.supremecourtus.gov/about/biographiesc
Ruth Bader 8-10-1993 Clinton 60 75 urrent.pdf
Ginsburg 15 Years 97-3 3-15-33 Wikipedia page on Supreme Court:
Stephen 8-3-1994 Clinton 56 70 http://en.wikipedia.org/wiki/United_States_Court_o
Breyer 14 Years 87-9 8-15-38 f_Appeals_for_the_Fourth_Circuit
NYT: http://topics.nytimes.com/topics/reference/
Samuel 1-21-2006 GW Bush 55 58 timestopics/organizations/s/supreme_court/index.ht
Alito 3 Years 58-42 4-1-50 ml

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US Supreme Court Direction

The Supreme Court, after President Bush’s 2
appointments (Alito and Roberts), has been a
mixed bag on business interests.
This article from the Washington Post discusses
the good and bad from the new Court for
business interests in general, and more specifically
for employment issues.
http://www.washingtonpost.com/wp-
dyn/content/article/2009/03/07/AR2009030701596.html?
referrer=emailarticle

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Vacancies on the NLRB

The National Labor Relations Board (NLRB) consist of 5
members, and the NLRB board issues important decisions
on a broad range of union issues.
There are currently only 2 members, so there are 3
vacancies. Wilma Liebman is considered liberal and pro-
union. Peter Carey Schaumber is considered conservative
and pro-management.
President Obama will be able to fill the 3 vacancies, with a
likely significant shift
NLRB home page: http://www.nlrb.gov/index.aspx
NLRB board members:
http://www.nlrb.gov/about_us/overview/board/index.aspx
National Right to Work Legal Defense Foundation:
http://www.nrtw.org/en/free-tagging/nlrb

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Vacancies on the NLRB

National Right to Work Legal Defense Foundation: http://www.nrtw.org/en/free-tagging/nlrb
September Massacre article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1133607#PaperDownload

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Likely Future Legislation: Unions, Free Choice Act
The Employee Free Choice Act of 2009. In 2005 and 2007, the US Congress considered but did not pass the Employee
Free Choice Act. In 2007, it passed the house, it had more than 50 votes in the Senate, but the Democrats could not get the
60 votes in the Senate to shut off debate and get a vote. So the bill died in the Senate.
President Obama and the Democrats in Congress support the Employee Free Choice Act, and the Democrat leadership in
Congress is promising to introduce again the legislation soon (probably within a few days of this article being written).
Union and business interests are promising to devote very large amounts of money and effort into passing and defeating the
legislation. There is an incredible amount of inflated rhetoric being generated by the Act, and there seems to be an incredible
disagreement on what it will actually do. From the casual observer’s perspective, it is obvious that the two competing groups
are so aggressive in their positions because the Employee Free Choice Act will make it easier to get unions certified. The
discussion below assumes that the upcoming 2009 version of the act, which is probably only a few days from being introduced
into Congress, will be similar or identical to the 2007 version which nearly passed Congress.
The key language in the 2007 Act was this: “Notwithstanding any other provision of this section, whenever a petition shall have
been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a
majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual
or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the
employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization
specified in the petition as their bargaining representative and that no other individual or labor organization is currently
certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an
election but shall certify the individual or labor organization as the representative described in subsection (a).”
The current state of the law is that there is, because of rights the employer has under the law, almost always a secret ballot
(after a lengthy campaign on both sides.) The 2007 Act would lead to certification of the Union—and would eliminate the need
for the formal campaign and secret ballot—where a majority of the employees at the workplace sign valid cards saying they
want the union to represent them.
For the 2007 version, go to THOMAS, check 110 under “Select Congress” and in the “Enter Word/Phrase to Search Bill Text” type
Employee Free Choice Act: http://thomas.loc.gov/home/multicongress/multicongress.html

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Likely Future Legislation: Unions, Free Choice Act

Democrat summary of 2007 Employee Free Choice Act: http://democrats.senate.gov/journal/entry.cfm?id=277222&
12 Heritage Foundation article against the Act: http://www.heritage.org/research/labor/bg2027es.cfm

Likely Future Legislation: Sexual Orientation
Sexual orientation is currently not a “protected characteristic” under federal and West Virginia anti-discrimination laws.
The West Virginia legislature has had bills introduced to make sexual orientation a protected characteristic. For example,
Senate Bill 600 was introduced in 2008 but was never voted upon. The two key excerpts from the bill are printed below.
Essentially the same bill has now been introduced in the current legislative session as SB 238 on February 12, 2009. It has not
yet been voted upon.
A number of years ago, the US Congress considered legislation to make sexual orientation a protected characteristic, and it
came close to passing the in House.
Minnesota, Oregon, Washington, New York, several other states, and some local governments, have included sexual orientation
in the list of protected characteristics.
There is a growing political movement that, in my opinion, makes it likely that the US Congress, now that the Democrats have
control, will amend Title VII of the Civil Rights Act of 1964 to include sexual orientation as a protected characteristic.
Language of WV Bill in 2008: http://www.legis.state.wv.us/Bill_Text_HTML/2008_SESSIONS/RS/BILLS/SB600%20SUB1%20eng.htm
Language of WV SV238 introduced on February 12, 2009:
http://www.legis.state.wv.us/Bill_Text_HTML/2009_SESSIONS/RS/Bills/SB238%20SUB1.htm
Washington State’s web page on sexual orientation: http://www.hum.wa.gov/Sexual%20Orientation/empFAQ.html
Minnesota’s web page on sexual orientation: http://www.humanrights.state.mn.us/rsonline3/so_overview.html

Key language of Senate Bill 600 that was introduced in the West Virginia legislature in 2008, but was never voted upon:

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Pending Legislation, Not Yet Passed: Arbitration
The Arbitration Fairness Act of 2009 (H.R. 1020) was introduced in the US House on February 12, 2009. The bill has 36 co-sponsors,
and has been referred to the House Committee on the Judiciary.
The Bill would render unenforceable “pre-dispute” employment arbitration agreements. Its point is to reject US Supreme Court
precedent allowing for enforcement of such arbitration agreements under the Federal Arbitration Act, 9 U.S.C. §§ 3-4. See EEOC v.
Waffle House, Inc., 534 U.S. 279, 289 (2002).
Summary of bill from washgingtonwatch.com: http://www.washingtonwatch.com/bills/show/111_HR_1020.html
Sponsor, Hank Johnson’s news page: http://www.house.gov/apps/list/press/ga04_johnson/2009_02_12_arbitration_fairness_drops.html
The bill itself: http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.1020:

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Pending Legislation, Not Yet Passed: Paycheck Fairness Act
The Paycheck Fairness Act of 2009 (H.R. 12) was introduced in the US House on January 6, 2009. The Bill purports to strengthen laws
prohibiting pay discrimination. It includes a modification of the defense that employers may assert to justify differential pay between
genders.
It passed the US House and is pending in the Senate.
Statute of bill: http://www.govtrack.us/congress/bill.xpd?bill=h111-12&page-command=print
Summary of bill from pro-bill advocacy group: http://themiddleclass.org/bill/paycheck-fairness-act-2009

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Pending Legislation, Not Yet Passed: WV: Personnel Files
In the West Virginia Legislature, HB 3032, introduced on March 10, 2009, would give employees the right to review their personnel files.
The full text is reprinted below.
Full text on legislature’s web site: http://www.legis.state.wv.us/Bill_Text_HTML/2009_SESSIONS/RS/Bills/hb3032%20intr.htm
West Virginia Legislature, bill status: http://www.legis.state.wv.us/Bill_Status/bill_status.cfm

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Recently Passed Laws: Ledbetter Fair Pay Act
Congress passed, and President Obama signed into law (on January 29, 2009), the Lilly Ledbetter Fair Pay Act (Pub. L. 111-2, §1, 123
Stat.5), which overturns the US Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
This is what happened in the Ledbetter case: Ledbetter filed a charge of sex discrimination with the EEOC in 1998 and then later in
the year retired. She claimed that, years earlier in her career at Goodyear, male supervisors gave her bad performance reviews
compared to what men received. She claimed that Goodyear awarded raises based on those performance reviews, so that her pay
raises were reduced as a result of the discriminatory performance reviews. Ledbetter went to trial and persuaded the jury that the
performance reviews, years before she filed her EEOC charge, were discriminatory based on her sex, and the jury found her rights had
been violated and awarded her damages based on her lower paychecks throughout her career. The trial judge entered a "judgment" in
Ledbetter's favor based on the jury's verdict. So Ledbetter won at trial on her sex discrimination claim under Title VII. The Eleventh
Circuit Court of Appeals threw out the jury verdict and trial court judgment for Ledbetter, and entered a judgment in favor of
Goodyear, based on her failure to file her EEOC charge within 180 days of when the performance reviews had been conducted. The
United States Supreme Court affirmed, meaning that Goodyear won.
Here is the problem for Ledbetter: Title VII of the Civil Rights act, which governs sex discrimination in the workplace under federal law,
says that an employee must file a charge of discrimination within 180 days (or, depending on the state, 300 days) after the
discrimination occurred about which the employee is complaining. The Courts, in examining when the discrimination occurred (for
purposes of figuring out when that 180 day “clock” starts to run), have focused on the “discrete” employment “decision” that caused
some consequence (usually pay check-related) for the employee. Based on when Ledbetter filed her EEOC charge in 1998, for it to be
timely, she had to be complaining about “decisions” which occurred within the 180-day window preceding the charge. But the
discriminatory evaluations had occurred years before that, even though the reduced paychecks about which she complained continued
into that 180-day window.
The Supreme Court held that, in a situation where a decision (such as a performance review) was made that discriminated against a
female employee by paying her less, the employee was required to file a charge of discrimination with the EEOC within 180 days of
when the decision was made and communicated to her. That, for Ledbetter, would have been within 180 days after the bad performance
reviews were conducted and the results were communicated to her. Since she did not file EEOC her charge until years later, the charge
was not timely under Title VII. The consequence is that she loses all rights under the EEOC charge process, and she loses all rights to
file suit on the same claims in Court under federal law.
The Supreme Court's decision was a 5-4 vote that illustrates the ideological divide on the Court. The 5 vote majority consisted of the
“conservative” block on the Court (Alito, Roberts, Scalia, Kennedy, and Thomas), and the 4 vote dissent consisted of the “liberal” block
on the Court (Ginsburg, Stevens, Souter, and Breyer).
My news page on the Ledbetter decision: http://www.capuderfantasia.com/news_employment.html

17 Drew M. Capuder, Capuder Fantasia PLLC

Recently Passed Laws: Ledbetter Fair Pay Act
Key provisions of the Lilly Ledbetter Fair Pay Act (Pub. L. 111-2, §1, 123 Stat.5), which overturns the US Supreme Court’s decision in
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007):
The Ledbetter Act makes it clear that the 180 (or 300) day window for filing a charge of discrimination with the Equal Employment
Opportunity Commission applies not only to the original decision in issue (as in Ledbetter’s case, discriminatory evaluations and a
decision to pay her less than men), but also applies to each pay check she earns under the discriminatory decision. For example, if the
discrimination pay decisions was made in 2005, and during each pay period the woman is paid into 2009 less than men based on that
prior decision, each pay check is an “unlawful employment practice”. Under the law, you must file a charge of discrimination with the
EEOC within 180 (or 300) days of the “unlawful employment decision”. The US Supreme Court said in Ledbetter that the only “unlawful
employment decision” was the discrimination evaluation and related pay decision, both of which were years before Ledbetter filed her
charge. The Supreme Court held that each pay check that Ledbetter had earned over the years was irrelevant to when she had the 180
(or 300) day window to file a charge. The new Ledbetter Act, on the other hand, says that each pay check is another “unlawful
employment decision”, given the woman 180 (or 300) days from each paycheck to file a charge.
Here is the key language in the Ledbetter Act, as it is placed in the Civil Rights Act of 1964: “For purposes of this section, an unlawful
employment practice occurs, with respect to discrimination in compensation in violation of this subchapter, when a discriminatory
compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or
other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including
each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” 42
U.S.C. § 2000e-5(3)(A).
Section 6 of the Ledbetter Act states that it is retroactive and applies to all discrimination claims (as defined in Section 6) that were
pending as of May 28, 2007: “This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all
claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination
in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections
501 and 504 of the Rehabilitation Act of 1973, that are pending on or after that date.”
The full Act on the White House web site: http://www.whitehouse.gov/briefing_room/LillyLedbetterFairPayActPublicReview/


Recently Passed Laws: ADA Amendments Act of 2008
Congress passed (Senate: unanimous; House: 402-17), and President Bush signed into law (on September 25, 2008), the ADA
Amendments Act of 2008, which overturns some of the US Supreme Court’s decisions under the original ADA: Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999) (mitigating measures are to be considered in assessing whether someone is disabled); Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) (creating a “demanding standard” on whether an impairment “substantially
limits” a person’s major life activities).
Below is the EEOC’s list of changes brought about by the ADA Amendments Act of 2008.
Georgetown site on original ADA and 2008 amendments, with legislative history and language of the acts: http://www.law.georgetown.edu/archiveada/#ADAAA
Text of ADA Amendments Act: http://www.law.georgetown.edu/archiveada/documents/S3406FinalEngrossedVersion.pdf
Text of original ADA with changes from the 2008 amendments redlined: http://www.eeoc.gov/policy/ada.html (from EEOC site) and
http://www.law.georgetown.edu/archiveada/documents/ADAAsAmendedFINAL_10172008_.pdf (from Georgetown site)
EEOC’s list of changes in 2008 amendments: http://www.eeoc.gov/ada/amendments_notice.html


History of Employment Discrimination Laws
Focus on Federal and West Virginia Disability Discrimination
Key dates for Employment Discrimination Laws:
1964: US Civil Rights Act (Title VII)
1967: US ADEA & WVA HRA
1990: US Americans with Disabilities Act

Notes:
1. As of 1967 when WV HRA was passed, there was no general federal legislation protecting disabled person in the workplace, so there
was no federal precedent to rely upon for workplace disability discrimination.
2. The first WV decisions on disability discrimination under the HRA were Coffman and Ranger Fuel Corporation (1988), and Davidson
(1989). The ADA had not yet been passed, and the only helpful federal precedent was under Section 504 of the Rehabilitation Act of
1973, 29 U.S.C.A. § 701 et seq., which applied disability discrimination protection to some federal employees and some employees of
contractors who did business with the federal government.

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Outline from Seminar Agenda

What constitutes sexual harassment?

21

Was the harasser a When is Employer liable for
supervisor? harassment by supervisor?

No Yes
Then proceed with separate analysis Was there a tangible
not covered in this chart. employment action?

No, then:
Yes, then:
Hostile Work
Quid Pro Quo claim
Environment claim

Was the acceptance or rejection of the
Were the supervisor’s actions severe or
harassment the cause of the tangible
pervasive?
employment action?

Yes. Then the Employer is vicariously liable Yes
for supervisor’s harassment, unless Employer No
establishes Faragher-Ellerth two-step
affirmative defense.
Then there is no Then Employer is vicariously
Title VII or WV- liable for supervisor’s
Step One—Did Employer exercise HRA liability. harassment. The Faragher-
reasonable care to prevent and correct promptly Ellerth affirmative defense
any sexually harassing behavior? does not apply.
Step Two—Did Employee unreasonably fail If Yes to
(a) to take advantage of any preventive or both steps
corrective opportunities provided by Employer,
Then Employer is vicariously
or (b) to avoid harm otherwise?
liable for supervisor’s
harassment. The Faragher-
If No to
Ellerth affirmative defense
either step
22 does not apply.

Was the harasser a
supervisor?

1. Why do we care: Harassment by a supervisor will make Employer
vicariously liable for tangible employment action, and Employer may
not invoke the Faragher-Ellerth affirmative defense.
2. Federal, EEOC Position (broad test): Harasser in employee’s
(plaintiff’s) chain of command is a “supervisor” if (a) the individual
(harasser) has authority to undertake or recommend tangible
employment decisions affecting the employee; or (b) the individual
has authority to direct the employee's daily work activities." EEOC
Enforcement Guidance on Vicarious Employer Liability for Unlawful
Harassment by Supervisors (1999) (web). If harasser was not in
employee’s (plaintiff’s) supervisory chain of command, then harasser
will be treated as a “supervisor” if employee (plaintiff) reasonably
believes harasser had supervisory authority over her.
3. Broad or narrow test? There is no clear US Supreme Court or 4th
Prevention Tips: Circuit decision. There is substantial disagreement among federal
courts on the proper test, but the “trending” view seems to be
1. Careful differentiation between supervisors and co-
adoption of the EEOC’s broad test: Mack v. Otis Elevator Co., 326 F.3d
workers reduces likelihood that harasser will be a
116, 126-127 (2d Cir. 2003) (surveying decisions and adopting EEOC
“supervisor”, which activate F-E affirmative defense.
test), cert. denied, 540 U.S. 1016 (2003). But other circuits disagree
2. Make sure employee signs off on job description. and adopt a narrower test: Weyers v. Lear Operations Corp., 359 F.3d
3. Prepare/revise job descriptions: (a) limit and describe 1049, 1056-57 (8th Cir. 2004) (rejecting EEOC and Mack, adopting
precisely supervisory authority, and (b) for positions narrower test focused on authority to make tangible employment
which no supervisory authority, make that clear. decisions). Mikels v. City of Durham, N.C., 183 F.3d 323, 332 -333 (4th
Cir. 1999) is cited by Weyers for the narrow test, but that
4. Make sure appropriate management see and understand interpretation is very debatable, see Homesley v. Freightliner Corp., 122
the job descriptions. F.Supp.2d 659, 663-4 (W.D.N.C. 2000), aff’d, 61 Fed. Appx. 105 (4th
5. Incorporate job descriptions into performance reviews. Cir. 2003) (not published).
6. Make compliance with limits on supervisory authority an 4. West Virginia: Colgan Air, Inc. v. West Virginia Human Rights
item to be examined during review. Commission, 221 W. Va. 588, 656 S.E.2d 33, 41 (2007): Noted, without
analysis, that harassing employees had “no management or
7. Consider establishing procedure for periodically supervisory authority”, and that arguably reflects the EEOC’s 2-part
distributing job descriptions to employees. Don’t let them analysis. Albright’s partial dissent surveys conflicting tests and
become ancient relics.
23 proposes test close to EEOC test.

Was there a tangible
employment action?

1. Why do we care: If there was a tangible employment action, the
Employer may not invoke the Faragher-Ellerth affirmative defense.
1. If there is a tangible employment action, the sexual
harassment does not need to be “severe and pervasive”.
2. The action is conclusively presumed to be by a supervisor,
and there is generally no issue of “notice” to Employer.
3. The only real issues will be: (a) did the sexual harassment
occur, and (b) was the plaintiff’s reaction the cause of the
tangible employment action.
2. Federal Position: In Pennsylvania State Police v. Suders, 542 U.S. 129,
144 (2004), the Supreme Court held that a tangible employment
action is a “significant change in employment status”, such as
1. Hiring,
Prevention Tips:
2. Firing (which, under some circumstances, can include
1. There is not anything you can do to alter the definition of constructive discharge),
tangible employment action. A “firing” is a firing, etc.
3. Failing to promote,
2. But consider examining your policies/procedures on who
4. Reassignment with significantly different responsibilities, or
has authority to make the decisions (firing, etc.) that will
be treated as tangible employment actions. 5. A decision causing a significant change in benefits.
3. Consider two possible changes in those policies and 6. [and probably:] An “extremely dangerous job assignment to
procedures: retaliate for spurned advances” (page 150)
1. Take the authority away from a group or class of 3. West Virginia: There is no indication that West Virginia has any
employees that you might consider to be higher different listing or application of tangible employment action.
risk for sexual harassment claims (supervisory
workers on a manufacturing floor would be
stereotypical risky employees).
2. Apply more review to tangible employment
actions, with an eye toward scrutinizing those
decisions for risky situations (ex.: sudden adverse
action to employee with prior solid record).
24

Was there a tangible employment action?

Note on constructive discharge.
1. Constructive discharge is a phrase used to describe what is
apparently a voluntary resignation, but will be treated by the law as
the equivalent of a termination. What is the definition of constructive
discharge?
2. Federal: A constructive discharge exists if the “working conditions”
were “so intolerable that a reasonable person would have felt
compelled to resign”. Pennsylvania State Police v. Suders, 542 U.S. 129,
147 (2004).
3. West Virginia: To prove constructive discharge: “adverse working
conditions must be so intolerable that any reasonable employee
would resign rather than endure such conditions.” Slack v. Kanawha
County Housing and Redevelopment Authority, 188 W. Va. 144, 423 S.E.2d
547 (1992)
Prevention Tips: 4. Constructive discharge applies to all forms of discrimination and all
1. Resignation claimed to be constructive discharge involves types of hostile work environment. Love v. Georgia-Pacific Corporation,
(a) “precipitating conduct” by the employer, and (b) the 209 W. Va. 515, 550 S.E.2d 51 (2001). Constructive discharge” is
“employee’s decision” to quit. Pennsylvania State Police v. “functionally the same” as termination for calculation of damages.
Suders, 542 U.S. 129, 148 (2004). Pennsylvania State Police v. Suders, 542 U.S. 129, 148 (2004).

2. For the employee’s decision to quit, the following 5. Does a finding of constructive discharge mean that the
consideration can be addressed in terms of preventive employee’s departure will be treated as a tangible
measures: (a) clear anti-harassment and complaint policies, employment action (assume supervisor)? It depends (isn’t the
(b) dissemination of and training on those policies, (c) the law wonderful). Both of the following scenarios assume the
personalities and accessibility of persons/departments to resignation was a “constructive discharge”:
whom complaints would be directed, (d) treatment of the 1. If the resignation is prompted or precipitated by a tangible
complaining employee in response to a complaint, (e) how employment action, then the Faragher-Ellerth affirmative
the complaining employee is informed about the defense does not apply. Possible tangible employment actions:
investigation and any resulting action, (f) support for or (a) demotion, (b)reduction in pay, (c) transfer to a very
hostility against the complaining employee amongst co- unattractive position (including dangerous). Pennsylvania State
workers, (g) the complaining employee’s understanding of Police v. Suders, 542 U.S. 129, 148 & 150 (2004).
what happened with prior complaints (by herself or
others), and (h) the complaining employee’s perception of 2. Otherwise, the Faragher-Ellerth affirmative defense applies.
25 the power of the harasser within the organization.

Quid pro quo claim for
sexual harassment.

1. Terminology: although the courts continue to frequently use the “quid
pro quo” name, the US Supreme Court has criticized use of that name
(along with “hostile work environment”). Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 752-754 (1998). The Supreme Court has instead
applied this terminology (Pennsylvania State Police v. Suders, 542 U.S. 129,
143 (2004)): (a) Harassment that culminates in a tangible employment
action (for which the employer is strictly liable); and (b) harassment that
takes place in the absence of a tangible employment action (to which the
employer may assert the Faragher-Ellerth affirmative defense).
2. Federal: Prima facie case (Reinhold v. Commonwealth of Virginia, 135
F.3d 920, 931-932 (4th Cir.1998)):
1. the employee belongs to a protected group;
2. the employee was subject to unwelcome sexual harassment;
Prevention Tips: 3. the harassment complained of was based on sex;

1. No separate suggestions that are not covered elsewhere. 4. the employee's reaction to the harassment affected tangible
aspects of the employee's compensation, terms, conditions, or
privileges of employment; and
5. the employer knew or should have known of the harassment and
took no effective remedial action (this is automatically satisfied
where the sexual harassment by the supervisor).
3. West Virginia: Prima facie case The plaintiff must prove (Gino's Pizza
of West Hamlin, Inc. v. West Virginia Human Rights Commission, 187 W. Va.
312, 315; 418 S.E.2d 758, 761 (1992)):
1. That the complainant belongs to a protected class;
2. That the complainant was subject to an unwelcome sexual
advance by an employer, or an agent of the employer who
appears to have the authority to influence vital job decisions;
3. the complainant's reaction to the advancement was expressly or
impliedly linked by the employer or the employer's agent to
26 tangible aspects of employment.

Hostile work environment
claim for sexual harassment.

1. Federal: Prima facie case (Gilliam v. South Carolina Department of
Juvenile Justice, 474 F.3d 134, 143 (4th Cir.2007) (racial harassment)):
1. The conduct was unwelcome;
2. The conduct was based on race (or sex, etc.); and
3. The conduct was sufficiently severe or pervasive to alter the
conditions of employment and create an abusive atmosphere.
2. West Virginia: Prima facie case The plaintiff must prove (Hanlon v.
Chambers, 195 W. Va. 99, 106-7, 464 S.E.2d 741, 748-9 (1995) (citing Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)):
1. The subject conduct was unwelcome;
2. It was based on the sex of the plaintiff;
3. It was “sufficiently severe or pervasive to alter the [plaintiff’s]
Prevention Tips: conditions of employment and create an abusive work
environment”; and
1. Remember, we are dealing with harassment by a
supervisor. Therefore, issues of whether the employer 4. It was imputable on some factual basis to the employer
knew about the harassment are arguably not relevant, but [supervisor status should suffice for this element].
some courts ignore the distinction between supervisor 3. The requirement that the harassing conduct was “severe or pervasive” is
and co-worker hostile work environment claims and the most controversial part of the claim. It is the source of the most
require notice to the employer even where the fact-intensive analysis. Clark County School Dist. v. Breeden, 532 U.S. 268,
harassment was by the supervisor. Stress in your policies 270-271 (2001).
the need for the employee to bring the alleged
harassment to the attention of appropriate persons. 4. Faragher-Ellerth affirmative defense applies (Faragher v. City of Boca
Raton, 524 U.S. 775, 807 (1998)):
2. Focus on policies with particular emphasis on:
1. Step One: Did Employer exercise reasonable care to prevent
1. Dissemination, training, and periodic re-distribution and correct promptly any sexually harassing behavior?
of policies.
2. Step Two: Did Employee unreasonably fail (a) to take advantage
2. Look at the complaint procedures and tweak them
of any preventive or corrective opportunities provided by
for the best argument that it was unreasonable not
Employer, or (b) to avoid harm otherwise?
to invoke the complaint procedure,
3. Note: It is the employer’s burden to prove the affirmative
27 defense.

Harassment by co-worker, hostile
work environment

1. West Virginia: Prima facie case The plaintiff must prove (Hanlon
v. Chambers, 195 W. Va. 99, 106-7, 464 S.E.2d 741, 748-9 (1995)):
conditions of employment and create an abusive work
environment”; and
4. It was imputable on some factual basis to the employer [this
element is treated differently, depending on whether the
harassment was by a supervisor].
2. Flash-back; Harassment by supervisor: “Where an agent or
supervisor of an employer has caused, contributed to, or acquiesced
in the harassment, then such conduct is attributed to the employer,
Prevention Tips: and it can be fairly said that the employer is strictly liable for the
1. Careful differentiation between supervisors and co- damages that result.” Hanlon v. Chambers, 195 W. Va. 99, 108, 464
workers reduces likelihood that harasser will be a S.E.2d 741, 750 (1995). [Is this altered after US Supreme Court’s
“supervisor”, which activate F-E affirmative defense. 1998 decisions in Faragher and Ellerth?]

2. Make sure employee signs off on job description. 3. Further Requirements for Harassment by Co-Worker:
Plaintiff’s burden to prove: “When the source of the harassment is a
3. Prepare/revise job descriptions: (a) limit and describe person's co-workers and does not include management personnel,
precisely supervisory authority, and (b) for positions the employer's liability is determined by
which no supervisory authority, make that clear.
1. its knowledge of the offending conduct,
4. Make sure appropriate management see and understand
the job descriptions. 2. the effectiveness of its remedial procedures,

5. Incorporate job descriptions into performance reviews. 3. and the adequacy of its response.” Hanlon, 195 W. Va. at 108,
464 S.E.2d at 750.
6. Make compliance with limits on supervisory authority an
item to be examined during review. 4. How is “knowledge” proven? “Knowledge of work place
misconduct may be imputed to an employer by circumstantial
7. Consider establishing procedure for periodically evidence if the conduct is shown to be sufficiently pervasive or
distributing job descriptions to employees. Don’t let them repetitive so that a reasonable employer, intent on complying with ...
become ancient relics. [the West Virginia Human Rights Act] would be aware of the
28 conduct.” Hanlon, 195 W. Va. at 108 n.9, 464 S.E.2d at 750 n.9.

Illustrations of Common Sexual Harassment Lawsuit Scenarios
Termination Scenario, Harassment by Supervisor
Notes: Retaliation prima facie case (Conrad v. ARA Szabo, 198 W.Va. 362, 480
S.E.2d 801 (1996)):
• Plaintiff could prevail on either hostile work environment claim, or quid
pro claim, or both. One is not dependent on the other. 1. that the complainant engaged in protected activity;
• To win on hostile work environment claim, harassment must be “severe 2. that complainant's employer was aware of the protected activities;
or pervasive.” That requirement does not apply to quid pro quo claim. 3. that complainant was subsequently discharged and (absent other
• Notice to employer is irrelevant in both claims. The employer is evidence tending to establish a retaliatory motivation); and
vicariously liable. 4. that complainant's discharge followed his or her protected activities
• The Plaintiff would also likely assert a retaliation claim. within such period of time that the Court can infer retaliatory
motivation

1/2/2006 6/1/2006 7/1/2007
1/2/2006
Jane starts work Sexual harassment Jane is fired
at XYZ Inc. from Supervisor begins 6/1/2006 - 7/1/2007 by Supervisor
Hostile work environment claim

1/1/2007 1/1/2008

6/1/2006 - 7/1/2008
Quid pro quo claim, based on termination
(No Faragher affirmative defense)

Hostile work environment prima facie case (Hanlon v. Chambers, 195 Quid pro quo prima facie case (Gino's Pizza of West Hamlin, Inc. v.
W. Va. 99, 106-7, 464 S.E.2d 741, 748-9 (1995)): West Virginia Human Rights Commission, 187 W. Va. 312, 315; 418
S.E.2d 758, 761 (1992)):
1. That the complainant belongs to a protected class;
2. That the complainant was subject to an unwelcome sexual advance by
an employer, or an agent of the employer who appears to have the
conditions of employment and create an abusive work environment”;
authority to influence vital job decisions;
and
3. the complainant's reaction to the advancement was expressly or
4. It was imputable on some factual basis to the employer.
impliedly linked by the employer or the employer's agent to tangible
aspects of employment.
29

Illustration of Common Sexual Harassment Lawsuit

Constructive Discharge Scenario, With Prior Tangible Employment Action

• If you remove Demotion
7/1/07, then Faragher-Ellerth
affirmative defense applies
• If jury rejects constructive
discharge, then quid pro quo
claim is removed

Notes:
• Plaintiff could prevail on either hostile work
environment claim, or quid pro claim, or
both. One is not dependent on the other.
• To succeed on hostile work environment
claim, harassment must be “severe or
pervasive.” That requirement does not apply
to quid pro quo claim.

30

Key Sexual (and Other) Harassment Decisions

US Supreme Court Decisions Fourth Circuit Decisions WV Supreme Court Decisions
1. Meritor Savings Bank , FSB v. 1. Paroline v. Unisys Corp., 879 F.2d 1. Westmoreland Coal Company v. West Virginia
Vinson, 477 U.S. 57 (1986) 100, 106 (4th Cir.1989) Human Rights Commission, 181 W. Va. 368,
2. Harris v. Forklift Systems, Inc., 2. Spicer v. Commonwealth of Virginia, 382 S.E.2d 562 (1989)
510 U.S. 17 (1993) Department of Corrections, 66 F.3d 2. Gino's Pizza of West Hamlin, Inc. v. West
3. Oncale v. Sundowner Offshore 705 4th Cir. 1995) Virginia Human Rights Commission, 187 W.
Services, Inc., 523 U.S. 75 (1998) 3. Reinhold v. Com. of Virginia, 135 Va. 312; 418 S.E.2d 758 (1992)
4. Burlington Industries, Inc. v. F.3d 920, 935 (4th Cir.1998) 3. State ex rel Tinsman v. Hott, 188 W.Va. 349,
Ellerth, 524 U.S. 742 (1998) 4. Lissau v. Southern Food Service, 424 S.E.2d 584 (1992)
5. Faragher v. City of Boca Raton, Inc., 159 F.3d 177, 180 (4th 4. Hanlon v. Chambers, 195 W. Va. 99, 464
524 U.S. 775 (1998) Cir.1998) S.E.2d 741 (1995)
6. Clark County School Dist. v. 5. Mikels v. City of Durham, N.C., 183 5. Conrad v. Szabo, 198 W. Va. 362, 480 S.E.2d
Breeden, 532 U.S. 268, 270-271 F.3d 323, 332 -333 (4th Cir. 1999) 801 (1996)
(2001) 6. Conner v. Schrader-Bridgeport 6. Williamson v. Greene, 200 W. Va. 421, 490
7. Pennsylvania State Police v. Intern., Inc., 227 F.3d 179, 196-199 S.E.2d 23 (1997)
Suders, 542 U.S. 129 (2004) (4th Cir. 2000) 7. Napier v. Stratton, 204 W. Va. 415, 513 S.E.2d
463 (1998)
8. Fairmont Specialty Services v. West Virginia
Human Rights Commission, 206 W. Va. 86,
522 S.E.2d 180 (1999)
9. Akers v. Cabell Huntington Hospital, Inc., 215
W. Va. 346, 599 S.E.2d 769 (2004)
10. Kanawha County Board of Education v. Sloan,
219 W. Va. 213, 632 S.E.2d 899 (2006)
11. Johnson v. Killmer, 219 W. Va. 320, 633
S.E.2d 265 (2006) (age-based harassment)
12. Kalany v. Campbell, 220 W. Va. 50, 640 S.E.2d
113 (2006)
13. Colgan Air, Inc. v. West Virginia Human Rights
Commission, 221 W. Va. 588, 656 S.E.2d 33
(2007)

31

US Supreme Court Decisions on Harassment -- 1
Decisions by US Supreme Court Description
Meritor Savings Bank , FSB v. Vinson, 477 U.S. 57 -- Sexual harassment, hostile work environment, supervisor;
(1986) -- Trial court entered judgment in for defendants, court of appeals reversed in favor of
-- Winner: Employee employee, Supreme Court affirmed court of appeals and remanded for new trial;
-- 9-0 -- Supreme Court for first time recognized claim of hostile work environment, as being
sex discrimination;
-- Hostile work environment claim does not require economic harm;
-- Issue is whether sexual advances were “unwelcome”, not whether plaintiff’s
participation in sexual activity was “voluntary”; but evidence of “voluntariness” may be
relevant to the issue of whether sexual conduct was offensive;
-- Employer is not automatically liable for sexual harassment of supervisor; agency
principles should be consulted; common law agency principles apply with potentially
some modification because of Title VII’s language;
-- Mere existence of employer’s sexual harassment procedure, and fact that plaintiff did
not invoke the procedure, does not necessarily protect employer from liability.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) -- Hostile work environment, sexual harassment, supervisor;
-- Winner: Employee -- Trial court dismissed claim, court of appeals affirmed, Supreme Court reversed and
-- 9-0 remanded for new trial;
-- Harassing conduct in hostile work environment claim need not seriously affect an
employee's psychological well-being or lead the employee to suffer injury;
-- Hostile work environment claim requires an objectively hostile or abusive
environment-one that a reasonable person would find hostile or abusive-as well as the
victim's subjective perception that the environment is abusive;
-- Whether environment is sufficiently abusive to create a hostile work environment
must be evaluated based on all the circumstances, not just any single factor.
Oncale v. Sundowner Offshore Services, Inc., 523 -- Sexual harassment between members of the same gender (“same-sex sexual
U.S. 75 (1998) harassment”) is actionable;
-- Winner: Employee -- Objective severity of harassment should be judged from the perspective of a
-- 9-0 reasonable person in the plaintiff's position, considering all the circumstances.

32


Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 -- Employer vicariously liability for an actionable hostile environment created by a
(1998) supervisor with immediate or successively higher authority over employee;
-- 7-2 (Scalia and Thomas dissenting) -- In absence of a tangible employment action, employer may raise an affirmative defense
to liability or damages;
-- The affirmative defense requires employer to prove that it exercised reasonable care to
prevent and correct promptly any sexually harassing behavior and that employee
unreasonably failed to take advantage of any preventive or corrective opportunities
provided or to avoid harm otherwise;
-- Hostile work environment claim requires “severe or pervasive” harassment; a quid pro
claim does not.
Faragher v. City of Boca Raton, 524 U.S. 775 -- Sexual harassment by supervisors, hostile work environment, no tangible employment
(1998) action;
-- Winner: Employee -- Trial court rules in favor of employee on hostile work environment; court of appeals on
-- 7-2 (Thomas and Scalia dissenting) banc reversed in favor of employer; Supreme Court in favor of employee and
reinstatement judgment for employee;
-- Same rulings as Ellerth on vicarious liability and affirmative defense
-- Thomas and Scalia would have incorporated the affirmative defense into the plaintiff’s
case requirements, and would have remanded for new trial

33


Clark County School Dist. v. Breeden, 532 U.S. -- Hostile work environment, sexual harassment by supervisor
268, 270-271 (2001) (per curiam) -- Single incident of arguably sexual commentary could not have been found by any
-- 9-0 reasonable person to have constituted a hostile work environment;
-- Sexual harassment must be “sever or pervasive” to constitute a hostile work
environment, and this must be examined based on the totality of circumstances;
-- Title VII forbids only behavior so objectively offensive as to alter the ‘conditions' of the
victim's employment”). Workplace conduct is not measured in isolation; instead, “whether
an environment is sufficiently hostile or abusive” must be judged “by ‘looking at all the
circumstances,’ including the ‘frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.
Pennsylvania State Police v. Suders, 542 U.S. 129 -- Hostile work environment by supervisor, plaintiff quit and claimed constructive
(2004) discharge;
-- 8-1 (Thomas dissenting) -- Constructive discharge may not have been precipitated by a tangible employment
action, in which case the employer may assert the Faragher-Ellerth affirmative defense;
-- However, if the constructive discharge was precipitated by a tangible employment
actions (such as a demotion or reduction in pay), then the employer is vicariously liable
for the supervisor’s conduct, and the employer may not invoke the Faragher-Ellerth
affirmative defense; an unattractive transfer and an extremely dangerous assignment may
also constitute tangible employment actions in this context;
-- Constructive discharge puts the plaintiff in the same position for damages as
termination;

34

WV Supreme Court Decisions on Harassment -- 1
Decision by WV Supreme Court Description
Westmoreland Coal Company v. West Virginia --Sexual harassment, hostile work environment;
Human Rights Commission, 181 W. Va. 368, 382 -- HRC ruled for employee on sexual harassment, but appeal to Circuit Court reversed
S.E.2d 562 (1989) that decision; Supreme Court reversed decision of Circuit Court and reinstated HRC’s
-- Winner: Employee decision for employee;
-- 4-0 (Workman did not participate) -- Prima facie case for quid pro quo harassment;
-- Fact that plaintiff’s conduct was “voluntary” is not a defense to sexual harassment case;
Circuit Court incorrectly focused on “voluntariness” in concluding quid pro quo claim
was not viable.
Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d -- Not a sexual harassment case, but contains significant discussion of sexual harassment
245 (1990) law and standards by which employer is liable for supervisor’s conduct;
-- Winner: Employee -- HRC and Circuit Court both found pregnancy discrimination; Supreme Court agreed,
-- 5-0 but reversed on issue of mitigation of damages (trial court improperly concluded failure
to mitigate)
State ex rel Tinsman v. Hott, 188 W.Va. 349, 424 -- Sexual harassment, hostile work environment by non-supervisor;
S.E.2d 584 (1992) (per curiam) -- Trial court’s pretrial order precluded testimony about sexual harassment victims other
-- Winner: Employee than plaintiff; Supreme Court revered and concluded evidence of other victims may be
- 5-0 admissible on issue of whether hostile work environment existed;
-- Whether evidence of other sexual harassment victims may be introduced into evidence
depends on whether the evidence suggests that a hostile work environment existed for
plaintiff
-- But evidence of sexual misconduct 4 years before plaintiff’s employment was properly
excluded, because it did not impact plaintiff’s environment
Gino's Pizza of West Hamlin, Inc. v. West Virginia -- Sexual harassment by supervisor, quid pro quo claim;
Human Rights Commission, 187 W. Va. 312; 418 -- HRC rules in favor of employee, and Circuit Court on appeal reversed in favor of
S.E.2d 758 (1992) employer; Supreme Court reversed in favor of employee and remanded on damages;
-- Winner: Employee -- Prima facie case for quid pro quo harassment;
- 4-1 (Neely dissenting) -- Sufficient evidence existed to support HRC’s finding of sexual harassment, even though
no other persons witnessed the harassment, and even though the plaintiff did not
complain to anyone about the sexual harassment

35

Decisions by WV Supreme Court Description
Hanlon v. Chambers, 195 W. Va. 99, 464 S.E.2d -- Sexual harassment, hostile work environment by non-supervisor;
741 (1995) -- Trial court granted employer’s motion for summary judgment; Supreme Court reversed
-- Winner: Employee and remanded for new trial;
- 5-0 -- Trial court improperly ruled that sexual harassment of a supervisor by a subordinate
was not actionable;
-- Prima facie case for hostile work environment claim. Discussion of appropriate policies
and remedial action.
Conrad v. Szabo, 198 W. Va. 362, 480 S.E.2d 801 -- Sexual harassment, hostile work environment by non-supervisor;
(1996) -- Trial court granted employer’s motion for summary judgment, and Supreme Court
-- Winner: Employee reversed and remanded for new trial;
- 5-0 -- Discussion of “severe and pervasive”; no requirement for physical contact or
threatened assault;
-- Expressly sexual conduct must be examined (for “severe and pervasive”) in light of
non-sexual abusive conduct;
-- Prima facie case for hostile work environment, and discussion of each element;
-- When harassment is not by supervisor, employer’s liability turns on is knowledge of the
offending conduct, effectiveness of its remedial procedures, and adequacy of its response;
-- Knowledge of sexual harassment may be imputed to employer where the conduct is
sufficiently severe and pervasive so that a reasonable employer, intent on complying with
HRA, would be aware of the conduct.
Williamson v. Greene, 200 W. Va. 421, 490 -- Sexual harassment, claims of hostile work environment and termination, supervisor;
S.E.2d 23 (1997) -- Employer did not have 12 or more employees requirement by WV HRA;
-- Winner: Employee -- But employee could maintain a claim for sex discrimination and sexual harassment
-- 5-0 under common law claim for violation of public policy under Harless v. First National
Bank of Fairmont, 162 W. Va. 116, 246 S.E.2d 270, 275 (1978)

36


Napier v. Stratton, 204 W. Va. 415, 513 -- Disability-based harassment by co-workers, hostile work environment;
S.E.2d 463 (1998) (per curiam) -- Trial court granted employer’s motion for summary judgment; summary judgment was
-- Winner: Employer affirmed by WV Supreme Court
-- 5-0 -- Insults and harassment over a period of six months were not sufficiently “severe or
pervasive” so as to constitute a hostile work environment, partly because some of the
comments were away from work, and plaintiff sometimes joined in on hurtful comments
about other employees
Fairmont Specialty Services v. West Virginia -- Hostile work environment based on ancestry (Mexican-American), harassment by non-
Human Rights Commission, 206 W. Va. 86, supervisor;
522 S.E.2d 180 (1999) -- Human Rights Commission’s decision for plaintiff was affirmed by Supreme Court;
-- Winner: Employee -- Prima facie case for hostile work environment;
-- 4-1 (Davis dissenting) -- Discussion of “severe and pervasive” and appropriate remedial action.
Akers v. Cabell Huntington Hospital, Inc., 215 -- Sexual harassment, hostile work environment, by supervisor;
W.Va. 346, 599 S.E.2d 769 (2004) -- Trial court directed verdict for employer based solely on plaintiff’s failure to call expert to
-- Winner: Employee link sexual harassment to psychological injuries;
-- 4-1 (Maynard dissenting) -- No economic harm was asserted, but plaintiff claimed damages for (a) general emotional
distress, and (b) specific psychological injury;
-- Supreme Court reversed and remanded for new trial; prima facie case for hostile work
environment;
-- If plaintiff satisfies prima facie case elements, the case should be submitted to jury;
-- Discussion of “severe and pervasive”;
-- Sexual harassment claim does not require proof of psychological injury, but it does require
that the environment by “hostile or abusive”;
-- Psychiatric testimony was not necessary to link sexual harassment and psychological injury.
Kanawha County Board of Education v. Very unusual decision involving termination of a custodial employee working for a board of
Sloan, 219 W. Va. 213, 632 S.E.2d 899 education. The Supreme Court ultimately rules that the plaintiff was guilty of immoral conduct
(2006) but not sexual harassment, and that termination was a disproportionately harsh penalty. This
-- Winner: Employee case turns entire on law governing public employees in the education system, and appears to
-- 4-1 (Benjamin dissenting in part) have no impact on employment sexual harassment law.

37

Johnson v. Killmer, 219 W. Va. 320, 633 S.E.2d -- Age based termination and hostile work environment claim, supervisor;
265 (2006) (per curiam) -- Trial court granted summary judgment for employer, Supreme Court affirmed;
-- Winner: Employer -- Supreme Court assumed but did not directly decide that an age-based claim exists for
-- 5-0 hostile work environment;
-- Prima facie case for hostile work environment;
-- Facts did not establish that the harassment was severe or pervasive;
-- Work environment is sometimes “rough and tumble” and that is not actionable;
-- Plaintiff proved only a rude age-related remark, other comments were non-actionable
rudeness;
-- Rudeness and ostracism alone are insufficient to establish a hostile work environment
claim.
Kalany v. Campbell, 220 W. Va. 50, 640 S.E.2d -- Sexual harassment, hostile work environment, and retaliatory discharge;
113 (2006) -- Sexual conduct by owner of bar on a single occasion (grabbed against her will and
-- Winner: Employee on liability kissed her), plaintiff complained, owner then laid off plaintiff;
-- Winner: Employer on attorneys’ fees -- Jury found against plaintiff on sexual harassment claim, but for plaintiff on retaliatory
-- 4-1 (Starcher dissenting in part, on issue of discharge claim; and awarded attorneys’ fees trial court entered judgment for plaintiff;
attorneys’ fees) -- Supreme Court affirmed judgment for damages, but reversed award of attorneys’ fees;
-- Employer was liable on common law claim for retaliatory discharge (based on
complaint of sexual harassment), even though employer had few than 12 employees (so
there was no coverage under WV Human Rights Act);
-- Retaliatory discharge claims did not require proof (and success before the jury) on
underlying sexual harassment allegation; plaintiff need only prove that she complained in
good faith about what she reasonably believed was sexual harassment in violation of
HRA;
-- Employees should be encouraged to report sexual harassment even before it rises to
the level of being “severe or pervasive”.

38


Colgan Air, Inc. v. West Virginia Human Rights -- Harassment based on national origin and religion, hostile work environment,
Commission, 221 W. Va. 588, 656 S.E.2d 33 misconduct by non-supervisors;
(2007) -- Human Rights Commission found for employee on hostile work environment and on
-- Winner: Employer discharge for complaining about harassment; Supreme Court reversed on both claims
-- 3-2 (Albright and Starcher dissenting, only and entered judgment for employer;
on issue of hostile work environment) -- Employer was not liable for harassment because it had proper anti-discrimination
policies, and took prompt and effective remedial action after employee complained;
harassers were issues warnings and were then terminated, and harassment ceased;
-- Majority found that harassers were not supervisors; Albright’s dissent reviewed in
detail case law on definition of “supervisor” and concluded evidence existed to conclude
harassers were supervisors;
-- Good case for examining appropriate policies and investigative procedures;
-- HRC was mistaken in ruling that the discharge was in retaliation for complaints of
harassment; employer proved that it had conclusive non-discriminatory reason for
discharge (failure of plaintiff to pass pilot proficiency test); dissenting judges agreed with
this conclusion

39

Issue: Categories of Sexual Harassment -- 1

Decision or Other Authority Description
29 C.F.R. § 1604.11(a) “Harassment on the basis of sex is a violation of section 703 of title VII. [FN1]
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature constitute sexual harassment when
(1) submission to such conduct is made either explicitly or implicitly a term or condition
of an individual's employment,
(2) submission to or rejection of such conduct by an individual is used as the basis for
employment decisions affecting such individual, or
(3) such conduct has the purpose or effect of unreasonably interfering with an
individual's work performance or creating an intimidating, hostile, or offensive
working environment.”
Footnote: 1 “The principles involved here continue to apply to race, color, religion or
national origin.”
W.Va. C.S.R. § 77-4-2(2.2) 2.2: “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature constitute sexual harassment when:
2.2.1. Submission to or rejection of such conduct is made either explicitly or implicitly a
term or condition of an individual's employment or is exchanged for job benefits;
2.2.2. Submission to or rejection of such conduct by an individual is used as the basis for
employment decisions affecting such individual; or
2.2.3. Such conduct has the purpose or effect of unreasonably interfering with an
individual's work performance or creating an intimidating, hostile, or offensive working
environment.”

40

Issue: Vicarious Liability for Supervisor Harassment -- 1

Meritor Savings Bank , FSB v. Vinson, 477 U.S. 57, -- Employer is not always automatically liable for harassment by supervisor, citing
72 (1986) Restatement (Second) of Agency 219-237 (1958) (72)
-- Court decline to issue “definitive rule on employer liability” for supervisor harassment,
but Congress wanted Courts to look at “agency principles for guidance in this area” but
common law agency principles may not be “transferrable” to Title VII “in all their
particulars” in light of Title VII defining (42 U.S.C. 2000e(b)) “employer” to include any
“agent” of the employer (which “surely evinces an intent to place some limits on the acts
of employees for which employers under Title VII are to be held responsible” (72)
-- “Court of Appeals was wrong to entirely disregard agency principles and impose
absolute liability on employers for the acts of their supervisors, regardless of the
circumstances of a particular case (73)

41


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